Tejinder Singh vs State of Punjab

Rajan Gupta, J.—This is an appeal against the judgment of conviction and order of sentence dated 22nd January, 2011, delivered by Special Court, Mansa. The trial court after recording the prosecution evidence, came to the conclusion that the accused/Appellant was guilty of possession of contraband (i.e. 450 grams of opium. He was convicted u/s 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to be as "NDPS Act") and sentenced to undergo RI for six months and to pay a fine of Rs. 5000/-, in default whereof to further undergo rigorous imprisonment for one month.

Feeling aggrieved against the judgment of the trial court, the Appellant has approached this Court through the instant appeal. Learned Counsel for the Appellant states that he is limiting his prayer only to the extent of reduction in the sentence awarded and does not assail the judgment of conviction. Learned Counsel has submitted that the Appellant is the sole bread winner of his family including small children and there is no one to look after them.

According to him, in the present case the quantity of contraband (opium) recovered from the possession of the Appellant is much below the commercial quantity and out of the total awarded sentence of six months, he had already undergone 04 months and 02 days. Learned Counsel, therefore, prays that keeping in view the fact that he has to support his family and the quantity of contraband recovered from him is below the commercial quantity, the sentence be reduced to the period already undergone by him.

Learned State counsel has placed on record a reply by way of affidavit dated 16th April, 2011 of the Superintendent, Central Jail, Bathinda, according to which the Appellant had already undergone 03 months and 15 days of sentence as on 11th April, 2011. He submits that in case conviction of the Appellant is maintained, the court may reduce the sentence as deemed appropriate in the circumstances of the case.

I have heard learned Counsel for both the parties.

Briefly, the prosecution case runs thus:

On 7th September, 2007, ASI Nachattar Singh along with other police officials was on patrolling duty and going from the side of village Danewala towards village Moffar. On the way, at bus stand Danewala, one Binder Singh met him who was also joined in the police party. Thereafter, when the police party reached at the distance of 11/2 kilometers from village Moffar, then the accused (Appellant herein) was seen coming from the side of village Moffar carrying a plastic bag (Jhola) in his right hand. On seeing the police vehicle, he became perplexed and tried to escape towards the fields. On suspicion, he was apprehended. The said ASI informed the accused/Appellant of his right of being searched in the presence of some gazetted officer and the accused/Appellant desired that his search may be taken in the presence of some gazetted officer. His consent memo was reduced into writing. A message was flashed to DSP Manjinder Singh who reached at the spot and disclosed his identity to the accused. Then search of the bag of the accused/Appellant was taken from which opium was recovered. Out of the said opium, a sample of 10 grams was separated and the remaining on weighing came to be 440 grams. The same were sealed separately. After completion of investigation and on receipt of report of chemical examiner, the accused was sent up for trial.

Finding a prima facie case u/s 18 of the NDPS Act, charge sheet was framed against the accused/Appellant to which he pleaded not guilty and claimed trial.

To substantiate its case against the accused/Appellant the prosecution examined as many as four witnesses. The statement of accused u/s 313 Code of Criminal Procedure was recorded, wherein the incriminating evidence available on record was put to him. He refuted the incriminating circumstances and pleaded false implication. The accused also examined Binder Singh as DW1 in his defence.

On the basis of the evidence on record, the learned trial court held the Appellant guilty of the charge framed against him and sentenced him as already indicated above.

On a perusal of the impugned judgment as well as trial court record, I am of the considered view that the trial court has rightly appreciated the evidence on record while holding the Appellant guilty of the charge framed against him. There is no infirmity or illegality in the findings given by the court below. The conviction of the Appellant is, thus, affirmed.

Even counsel for the Appellant, during the course of argument, has not assailed the judgment of conviction. He has, however, pleaded for reduction in the quantum of sentence on the ground that the Appellant is the main bread winner of his family including minor children.

Keeping in view facts and circumstances of the case, as also the fact that the Appellant has to support his family including minor children, I deem it fit to reduce his substantive sentence to the period already undergone by him. However, the fine imposed by the trial court shall remain intact. Ordered accordingly.

The fine, if not deposited already, be deposited within three months from the date of receipt of certified copy of this order, failing which the modification in quantum of sentence shall stand withdrawn and the Appellant shall undergo the remaining period of sentence as awarded by the trial court.

Except with the modification in the quantum of sentence and fine, as indicated hereinabove, the appeal stands dismissed.